The method of the theory of state and law has a complex structure, the basis of which is the theory of knowledge as the methodological basis of any legal science. The theory of knowledge is based on the theory of reflection and is the result of the centuries-old path of mankind to the knowledge of the world. Its main link is the principles of knowledge:
- - the object of cognition, phenomena or things of the surrounding world exists objectively, independently of the cognizing subject, and is cognizable;
- - the result of cognitive activity - knowledge, their system, which are objectively determined by reality, life;
- - thinking is mediated cognition based on perception environment through sensation, perception and representation;
- - the thought process is the derivation of abstraction, generalizations of concepts and categories that fix objective laws;
- - thinking and language are closely interconnected; thinking proceeds with the help of language and objectifies thought; language units (word; verbal turnover; grammatical sentence) and rules are an adequate way of formulating thoughts; at the same time, language is a way of fixing (expressing) the results of thinking;
- - knowledge "doubles" the world. On the one hand, this is the world of reality, directly what surrounds us, on the other hand, the world of the ideal, existing in the form of concepts, categories, hypotheses, assumptions, theories, concepts, reflecting reality.
Of course, these are only the foundations of the theory of knowledge, without the knowledge of which, without the implementation of their requirements, it is impossible to achieve objective scientific results.
The method of cognition depends on the composition (combination) of cognitive means, as well as on the goal set by the cognizer. However, the theory of knowledge itself is only the basis of the method of legal science, including its constituent theory of state and law, which, as it were, absorbs dialectical principles and dialectics itself (“prescribes”) as a universal method of cognition.
Dialectics as a universal principle of knowledge. It is a systematized rules for cognition of the world, developed by mankind. Hegel was the universal systematizer and author of many requirements of the dialectical approach, dialectical logic. *(5) .
The main requirements of dialectics include, first of all, the objectivity of the approach to the phenomenon under study (state and law). The cognizer must study all aspects of an object or phenomenon and its (their) connections with others, where its properties are realized or manifested. For example, it is impossible to study law, legal regulation without connection with the state, state power; it is also impossible to study them objectively outside of such special phenomena as politics, culture, etc. In our opinion, the materialist approach is largely based on this universal principle of dialectics, which consists in considering the state and law as special phenomena that are integral elements of society, social device. These structural components of the social system are called upon to perform the most important functions in order to preserve and develop the society itself. However, their content and level of development are predetermined by the existing social, cultural and economic conditions.
Marxism went even further in this regard and argued that basic relations - relations that develop in the process of means of production and means of consumption and exchange - are a factor that determines the essence and content of the superstructure towering above them (state, law, morality, culture, etc.) . Thus, the state and law are predetermined by the economy, and their "reverse" impact on it is small. *(6) . The Marxist concept of the origin of the state and law, their place and functions in public life, as well as their fate, including political ones, are currently being criticized. However, it is hardly objective to deny the Marxist position on the relationship and interdependence of the state and law on economic and other social phenomena.
Ultimately, what is being studied should realistically and accurately reflect reality. The following points are important here. The researcher who bases his knowledge on the principles of dialectics, worked out by all human experience and objectively given by nature, is in principle "doomed" to achieve objective results. Meanwhile, the achievement of objectivity is often difficult, especially in the field of social sciences for reasons of a political nature, emotional perception of social processes and the results obtained. Here the task of the researcher is to maintain objectivity, despite various circumstances, because only in this case the obtained research data can be called scientific, and their author can be called a scientist.
The next requirement of dialectics is that the study of a phenomenon or object must be carried out from the standpoint of how it arose, what stages it has gone through in its development, what tasks and functions it currently performs. This requirement fully applies to legal science; undoubtedly it is very important principle for the method of the theory of state and law, the history of the domestic state and law and other legal sciences. It is impossible to adequately represent the goals, objectives and content of the state and law, without having an idea about the features of these phenomena in the past, their social and political purpose.
The requirements of dialectics in the study of state-legal phenomena include the use of categories of dialectical materialism. And this is true, but it is important that their application is correct. Often, when studying, concepts are used that do not correspond to the semantic content of the obtained scientific results (according to our observations, this often happens, for example, with the category "essence", etc.). Legal science most often uses such dialectical categories as form and content; essence and phenomenon; cause and effect, general and special, etc. Attention should also be paid to the need for the correct application of concepts and categories of other philosophical sciences, for example, systems theory (element and structure; system and subsystem, etc.). This fully applies to sociology, historical materialism, etc.
The application of the theory of state and law of the categorical apparatus of dialectics, its laws in the study of the state, law, legal regulation allows us to find out and reveal the deep patterns of their origin, development and change; order and structure the result of the known.
General scientific methods. The theory of knowledge, its principles, dialectics and its categories and laws alone cannot give scientific results. They are only guiding requirements and necessary scientific means. Any sciences obtain more specific knowledge by applying general scientific methods. Their knowledge and creative application in the study of the state and law and other related phenomena greatly facilitates the path to objective knowledge, acts as a guarantor against mistakes and obtaining unreliable knowledge. The content of general scientific methods is made up of techniques and methods used in the process of cognition of its subject, with the help of which new knowledge is incremented in the system of a given science. Thus, the method of the theory of state and law is a system of techniques and methods used to understand the subject of science, revealing the laws governing the functioning and development of state and law. Consider general scientific methods.
theoretical method. basis this method constitutes the ascent from the concrete to the abstract, which is a necessary stage in the knowledge of the subject of science and by and large acts as the main method of cognition of state-legal reality. It is this method that first of all allows us to speak about the features of science from the standpoint of cognition of reality. Abstraction is a qualitatively new stage, a leap in the development of scientific knowledge, undoubtedly enriching empirical knowledge. This is a transition from a variety of features, relationships and connections inherent in phenomena and processes, to patterns that are repetitive and stable.
Theoretical knowledge of inexplicable factors leads to the formation of concepts that reflect the general properties and connections of the phenomena under study ("system of law", "rule of law", "source of law", "gap in law", "conflict of legal norms", etc.), formed with using abstraction.
The ascent from the concrete to the abstract is widely used in the process of studying new phenomena and factors that, due to objective circumstances, cannot be explained with the help of theoretical knowledge.
The axiological method (value method) is getting more and more application in law and other social sciences. Its basis is the theory of values and evaluations. A person has always tried to determine what is valuable, useful for him, what phenomena and objects are significant for him, a group of people, society, the state, the economy, etc. Researchers also set themselves the task of determining the value of a phenomenon, object, information, etc.
Since the middle of the last century, the so-called systematic approach (method) has received great recognition. Here the researcher's task is to establish the system (object), (subsystems), their elements, the presence and quality of connections and relationships between them. The systems approach is based on the assertion of the principle that each subsystem, in turn, is a system for another, larger one. For example, it is true that the system of law acts as a supersystem for the branch of law as an independent system. At the same time, the branch of law is a supersystem for its sub-branches. The same can be said about the relationship between the sub-branch and the institution of law. With regard to state phenomena, as an example of a system-subsystem relationship, the federation and its subjects can act. We emphasize that system analysis (sometimes called system-structural analysis) aims to identify functional relationships between elements, to establish factors that ensure the unity of the system. Importance It also has the establishment of subordinate relations in the system and the means of its provision, as well as coordination and other links and means of their provision.
Private scientific methods. The legal sciences, including the theory of state and law, use not only general scientific methods, but also particular scientific methods that are characteristic of certain legal sciences. General scientific and particular scientific methods do not merge with each other. The breadth of use of particular scientific methods does not mean that they "absorb" general scientific ones. Often, private scientific methods are also attributed a universal character, they are considered not only from the position of universality, but are also endowed with such qualities as “the aspiration of dialectics”, “its edge”, etc.
The private scientific methods of the legal sciences include the formal-logical method, the concrete sociological method, comparative law (state studies), etc.
Formal-logical method- means and methods of logical study of law. Based on concepts, categories, rules and laws of formal logic. Here law is studied as such and is not associated with other social phenomena (culture, religion, morality, etc.) and the economy. In this case, the researcher abstracts, for example, from the problems of the subjects of law enforcement, its effectiveness, etc. Law is considered as a formally defined, logically interconnected and strictly fixed system of rules, built on the principle of subordination and consistency of norms. The logical law of identity, non-contradiction, excluded third, sufficient reason allows us to establish the features of law as a logical system. Law-making and law enforcement are considered in accordance with logical forms of thinking, logical operations, which are based on the rules for formulating judgments and conclusions.
Law-making activity in the process of preparing the text of a normative legal act is subject to the law and the rules of formal logic, forming an outwardly invisible, but extremely important logical basis for the text of the document.
The formal-logical method is successfully used in the study of law enforcement. The application of a legal rule to an actual circumstance is often rightly presented as a deductive inference, where the rule of law is a major premise, the actual situation is a minor one, and the decision in a legal case is a conclusion.
Note: formal logic, its techniques and laws are applied when using any method. When it comes to the formal-logical method, then here we mean the use of logic as a special way of knowing law (that is why the method is called formal-logical).
Concrete sociological method. The state-legal institutions studied by legal science are ultimately expressed in the actions of citizens, officials, collective subjects of law. Legal sociology studies these actions, operations (systems of actions), the activities of various state bodies and their results. The purpose of specific sociological research is to obtain information about state-legal activities and their effectiveness. Using this method, we study, for example, the personnel composition of the judicial system (level of legal education, academic degree, frequency of advanced training), attitude to the implementation professional duties(the number of complaints and applications against the actions of a judge and employees of the judicial system), as well as factors influencing the issuance of court decisions (the level of professional preparedness, the level common culture, marital status, etc.).
The methods of obtaining this kind of information are surveys, analysis of written sources, interviews, etc. The unreliability of sociological information is a frequent phenomenon. It is explained by the desire of the interviewee to "look better", to hide difficulties, shortcomings in professional activity. Socio-legal research is labor-intensive, costly and requires high professionalism.
The method of comparative law and state studies involves the study of various state-legal systems, including judicial ones, by identifying general and special features of similar legal phenomena. The acquired knowledge can be used to improve the state apparatus and its bodies, the legal system. This knowledge is necessary for the formation of a single legal space, the coordination of the efforts of various, primarily European, states, to solve the global problems of mankind.
The comparative method involves the following stages of research: 1) the study of state-legal phenomena as autonomous entities and the identification of their essential qualities and features; 2) comparison of the studied features of similar institutions and the establishment on this basis of similarities and differences; 3) assessment of the signs of difference from the standpoint of the expediency of application in the national state-legal or international practice. Evaluation can be carried out from the standpoint of fairness, expediency, efficiency, etc.
Comparative law allows you to significantly expand your legal horizons and create a basis for practical activities. This method and its development are very important for Russia - a country where legislation is being actively updated, judicial and administrative reforms are underway, as well as local self-government reform.
The legal sciences, including the theory of state and law, as noted, use not only general scientific methods, but also private scientific methods characteristic of the legal sciences. General scientific and particular scientific methods do not merge with each other. The breadth of use of particular scientific methods does not mean that they “absorb” general scientific ones, and vice versa. Often, private scientific methods are also attributed a universal character, they are not only considered from the position of universality, but they are also endowed with such qualities as “the aspiration of dialectics”, “its edge”, etc.
The private scientific methods of the legal sciences include the formal logical method, the concrete sociological method, comparative law (state studies), etc.
Formal-logical method- means and methods of logical study of statehood and law; based on concepts, categories, rules and laws of formal logic. Here, the state and law are studied as such and are generally not associated with other social phenomena (culture, religion, morality, etc.) and the economy. In this case, the researcher abstracts, for example, from the problem of the quality of the subjects of law enforcement, its effectiveness in connection with this, etc. Law is considered as a formally defined, logically interconnected and strictly fixed system of rules built on the principle of subordination and consistency of norms. The logical laws of identity, non-contradiction, excluded middle, sufficient reason make it possible to establish, for example, the features of law as a logical system. Thus, lawmaking and law enforcement are considered in accordance with logical forms of thinking, logical operations, which are based on the rules for formulating judgments and conclusions.
Law-making activity in the process of preparing the text of a normative legal act is subject to the laws and rules of formal logic, forms an outwardly invisible, but extremely important logical basis for the text of the document. The content of a normative legal act, its composition also involves the use of the rules of formal logic.
The formal-logical method is successfully used in the study of law enforcement. The application of a legal rule to an actual circumstance is often rightly presented as a deductive inference, where the rule of law is a major premise, the actual situation is a minor one, and the decision in a legal case is a conclusion. The result of law enforcement activity in most cases is the preparation of an individual act, in which not only the meaning is important, but also the competent use of the means of formal logic. Each individual (enforcement) act also has a logical structure and textual specifics (judgment, order for employment, decree of the President of the Russian Federation on rewarding, etc.).
Thus, the formal-logical method allows us to explore the logic of the actions of the subjects of lawmaking and law enforcement, the features of professional thinking, etc.
Note that formal logic, its techniques and laws are applied when using any method. When it comes to the formal-logical method, then here we mean the use of logic as a special way of knowing law (that is why the method is called formal-logical).
Consider the entity concrete sociological method. The state-legal institutions studied by legal science are ultimately expressed in the actions of citizens, officials, and collective subjects of law. Legal sociology studies these actions, operations (systems of actions), the activities of various state bodies and their results. The purpose of specific sociological research is to obtain information about the qualitative side of state-legal activity, its effectiveness. Using this method, for example, the personnel of the judiciary (level of legal education, academic degree, frequency of advanced training), attitude to the performance of professional duties (the number of complaints and applications against the actions of a judge and employees of the judiciary), as well as factors affecting making court decisions (level of professional readiness, level of general culture, marital status, etc.).
The methods of obtaining this kind of information are polling, questioning, analysis of written sources, interviewing, etc. The unreliability of sociological information is a frequent phenomenon. It is explained by the desire of the interviewee to “look better”, hide difficulties, shortcomings in professional activities, etc. Social and legal research is laborious, costly and requires high professionalism.
Comparative Law and State Studies as a Method involve the study of various state-legal systems, including law-making, law-enforcement, including judicial, by identifying general and special features of similar legal phenomena. The knowledge gained can be used to improve the state apparatus and its bodies, the system of law, etc. This knowledge is necessary for the formation of a single legal space, coordination of the efforts of various, primarily European, states to solve the global problems of mankind.
The comparative method involves the following stages of research: 1) the study of state-legal phenomena as autonomous entities and the identification of their essential qualities and features; 2) comparison of the studied features of similar institutions and the establishment on this basis of similarities and differences; 3) assessment of the signs of difference from the standpoint of the expediency of application in national state-legal or international practice. Evaluation can be carried out from the standpoint of fairness, the appropriateness of efficiency, etc.
Comparative law allows you to significantly expand your legal horizons and create a basis for practical activities. This method and its development are very important for Russia - a country where legislation is actively developing, judicial and administrative systems are being modernized, as well as local self-government.
State and law, jurisprudence and procedural law
Signs of the methods of the theory of state and law are: contributing to the deepening of knowledge about the state and law, compliance with the concepts of law, the implementation of legal knowledge of the surrounding reality. All methods of the theory of state and law can be arranged in the following sequence: general methods; general scientific methods; private scientific methods. In the theory of state and law is used very widely.
General scientific and private scientific methods of the theory of law and state.
The method of science is understood as a set of principles, rules, techniques (methods) of scientific activity used to obtain true, objectively reflecting the reality of knowledge.
Signs of the methods of the theory of state and law are:
– contributing to the deepening of knowledge about the state and law,
- compliance with the concepts of law,
- implementation of legal knowledge of the surrounding reality.
All methods of the theory of state and law can be arranged in the following sequence:
– general methods;
– general scientific methods;
- private scientific methods.
1. General methods: dialectics and metaphysics are inherently philosophical, ideological approaches.
2. General scientific methods are the methods of scientific knowledge used in all or a number of areas scientific knowledge. They do not cover all general scientific knowledge, but are applied only at individual stages, stages, in contrast to general methods. The main general scientific methods include: analysis, synthesis, systemic and functional approaches, etc.
1) Analysis - method scientific research, consisting in the decomposition of the whole into its component parts. In the theory of state and law is used very widely.
2) Synthesis, unlike the previous one, consists in the knowledge of the phenomenon as a whole. In the unity and interconnection of its parts. Analysis and synthesis, as a rule, are applied in unity.
3) A systematic approach - the basis is the use of an object as a system (it focuses the study on revealing the conditionality of the object and the mechanisms that provide it, on identifying the diverse types of connections of the object itself and bringing them into a single theoretical picture).
4) Functional approach - identifying the functions of some social phenomena in relation to others within a given society. So, analyzing in detail the functions of law and the state, legal consciousness, legal responsibility, etc. in relation to the individual, society as a whole, are revealed functional dependencies between the various elements of the state and law.
3. Private scientific methods are methods that are the result of the assimilation by the theory of state and law, scientific achievements, technical, natural and related social sciences.
Among private scientific methods it is possible to allocate: concrete sociological; statistical; socio-legal experiment; mathematical; cybernetic modeling method; formal-logical; comparative legal, or method of comparative legal analysis.
1) The concrete sociological method considers questions of law and the state in connection with other facts of social life (economic, political, ideological, psychological). In law enforcement, specific sociological research is carried out, for example, when determining the causes of violations of law and order (in the form of a survey, questioning a detained offender). Questioning involves careful preparation: formulating a problem, developing hypotheses, preparing a questionnaire, choosing an appropriate circle of respondents, determining how to process the answers received, etc.
(option of legal regulation). Its purpose is to prevent damage that may result from making an erroneous decision.
2) The statistical method allows you to obtain quantitative indicators of a particular phenomenon. It is necessary for the study of state-legal phenomena that are massive and repetitive.
3) Socio-legal experiment is used mainly as a way to test scientific hypotheses. This is a test of one or another draft decision (option of legal regulation). Its purpose is to prevent damage that may result from making an erroneous decision. The specificity of this method determines limited scope its application in the field of criminal and criminal procedure law. The final stage of the socio-legal experiment is the creation of an experimental (experimental) norm. It can be considered as a prototype of the future rule of law.
4) Mathematical methods involve operating with quantitative characteristics. Mathematics is used in criminology, forensics, in the qualification of crimes, lawmaking and other areas of legal activity.
5) Formal-logical, or formal-legal. To understand the nature of a legal norm, it is necessary to determine the logical structure - a hypothesis, a disposition, a sanction. For the correct qualification of an offense, it is important to establish its composition: object, objective side, subject and subjective side.
6) The comparative legal method is based on a comparison of various political and legal phenomena in the conditions of revealing their general and special properties. In legal science, this method is used primarily when comparing the legislation of two or more states.
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The methodology of the theory of state and law is a set of certain theoretical approaches, principles, methods of research of state-legal phenomena.
1. General scientific methods - techniques that do not cover all scientific knowledge, but are applied at its individual stages: analysis, synthesis, system approach, structural approach, functional approach, method of social experiment.
Analysis involves the mental division of a single state-legal phenomenon into parts and their study. Thus, the state and law are analyzed according to their separate characteristics.
Synthesis- conditional union constituent parts state-legal phenomenon.
System method allows us to consider state-legal phenomena as integral, but systemic formations that have objectively diverse connections within and are included as an element in a more complex system.
Structural method. Through it, the structural elements of the phenomenon (system) are identified and analyzed.
functional method focuses on identifying the impact of some state-legal phenomena on others. This is how the functions of the state and law, the functions of the political system of society, etc. are analyzed.
Method of social experiment- involves checking the design of the solution to the problem in order to prevent damage from errors in legal regulation and improve the model. So, at first, as a social experiment in Russian Federation jury trial was introduced.
2. Special methods are a consequence of the assimilation by the theory of state and law of scientific achievements of technical, natural and humanitarian sciences. These are mathematical, cybernetic, statistical, sociological and other methods.
The mathematical method is the operation of quantitative characteristics of state-legal phenomena, which is widely used in criminology, criminalistics, lawmaking, in the qualification of crimes, etc.
The cybernetic method involves the application of concepts, laws and technical means cybernetics: information, control, computer technology, optimality and many others.
The statistical method makes it possible to obtain quantitative indicators of mass recurring state-legal phenomena.
4. Private scientific methods of cognition make it possible to achieve specific, detailed knowledge about the state and law with the help of the methodological function of special legal concepts. These include formal legal, comparative legal (comparative method), legal hermeneutics, and the method of state legal modeling.
Formal legal method allows you to determine legal concepts, their signs, classification, by interpreting the current legislation.
Comparative legal allows you to compare different legal or government systems foreign countries or their individual elements (industries, institutions, bodies) in order to identify common and special properties.
Legal hermeneutics- analysis of the real content of the texts of legal acts, based on the social context, because the text of the norm is the result of a special worldview.
Legal Modeling Method– ideal reproduction of the studied state-legal phenomena in relation to a certain situation. It is used to search for the optimal model for organizing the state apparatus, administrative and legal division, building a system of legislation, etc.
Method of science or academic discipline (from the Greek "method" - the path to something and "logos" - science, teaching) - a set of methods, techniques, approaches, principles by which a subject is studied.(Sokolov A.N.)
A method in science, in scientific activity is a means (technique) with the help of which new knowledge is obtained or systematization, evaluation, generalization of available information is carried out.
Thus, the method of science determines how the process of studying the subject of this science is carried out.
The theory of state and law develops its own methods for studying state-legal phenomena and at the same time actively uses the general methods developed by the social and natural sciences.
The methodology of the theory of state and law is a set of theoretical principles, logical techniques and specific methods for studying state-legal phenomena.
The first group consists of general methods.
For a long time, idealistic and materialistic methods of cognition, metaphysics and dialectics have been opposing in science. Our domestic science is characterized by an orientation towards a materialistic approach, according to which the deep, essential aspects of the state and law are ultimately determined by the economy, cash forms of ownership. The materialistic approach makes it possible to trace the connection between the state and law and real processes, to identify and explore their possibilities for strengthening the material foundations and increasing the economic potential of society.
The philosophical basis of the theory of state and law is the dialectical method, i.e. the doctrine of the most general regular connections between the development of being and consciousness. The general laws of dialectics include: the transition of quantitative changes into qualitative ones (an increase in the number of norms and institutions that consolidate and regulate private property relations has led to the division Russian law to private and public); the law of unity and struggle of opposites (unity of rights and duties, centralization and decentralization in state building); the law of negation (in the Russian statehood there are elements of the past and the embryos of the new statehood).
The second group consists of general scientific methods.
General scientific methods are means of cognition used in all areas of scientific knowledge.
The general scientific methods include, in particular, the system-structural method, the functional approach, general logical techniques, etc.
System-structural method involves the study of the internal structure (structure) of the phenomenon under study, as well as the study of relationships both between the constituent parts within the phenomenon itself and with related phenomena and institutions. This method proceeds from the fact that: 1) the system is an integral complex of interrelated elements; 2) it forms a unity with the environment; 3) as a rule, any system under study is an element of a system of a higher order; 4) the elements of any system under study, in turn, usually act as systems of a lower order. As a system any phenomenon can be considered.
The state and law in their essence, in structure, are complex, systemic phenomena. The main elements of the first are the organs of the state, the second - the rule of law. In general, the state, as the most important political institution, is included, along with other political institutions, in political system, and law - in the normative system of society.
The system method opens up great opportunities for studying the backbone structural elements of the state and law, direct and reverse influence on the state and law of the internal and external environment, to prevent contradictions and "disturbances" in the legal and state systems.
functional method is used to highlight in various systems the constituent structural parts in terms of their purpose, role, relationship, as well as the real effect of the phenomena under study.
General logical tricks(analysis, synthesis, induction, deduction, analogy, hypothesis) are used to define scientific concepts, consistent argumentation of theoretical positions, eliminate inaccuracies and contradictions. At their core, these techniques are a kind of "tools" for scientific activity.
1 TO philosophical laws and categories directly adjoins the method of ascension from the abstract to the concrete and from the concrete to the abstract . So, the process of cognition of the form of the state can move from the abstraction "form of the state" to its types - the form of government and the form of government, then to the varieties of these forms. With such an approach, the knowledge of the form of the state will be deepened, concretized, and the very concept of “form of the state” will begin to be enriched with specific features and characteristics. When thinking moves from the concrete to the general, the abstract, the researcher can, for example, study criminal, administrative, disciplinary offenses, their properties and features, and then formulate a general (abstract) concept of an offense.
2) Induction and deduction. Induction- a logical device, which consists in the initial knowledge of individual (or primary) aspects or properties of the state and law, on the basis of which generalizations of various levels are then given. For example, having identified the signs of a state body, the researcher can make an objective conclusion about what a state body is. Having formulated the concept of a state body, he goes further and makes a new, more generalized conclusion about what a state mechanism (a set of state bodies) is. Deduction- a logical technique, which lies in the fact that by logical inferences from the general to the particular, from general judgments to particular or other general conclusions, the general laws and properties of the state and law are known. Then, dividing them into certain groups, single formations, they are given a scientific assessment (definition). The research process proceeds here in the reverse order, characteristic of the inductive method. Thus, the knowledge of law can begin with the study of its general features and system-wide structure, then turn to the analysis of the branch of law as the largest structural unit of the legal system, and then identify the essential features and properties of sub-branches and institutions of law, and, finally, complete this process with a study of the legal norm. (the primary element of the entire system of law) and its structure.
3) As general methods for studying the theory of state and law, analysis and synthesis , which are the processes of mental or actual decomposition of the whole into its component parts and the reunification of the whole from the parts.
The condition for a comprehensive knowledge of the state and law, various state-legal phenomena is the versatility of their analysis. The division of the whole into its component parts makes it possible to reveal the structure, the structure of the object under study, for example, the structure of the mechanism of the state, the system of law, etc. One of the forms of analysis is the classification of objects and phenomena (classification of state bodies, functions of the state, rules of law, subjects of legal relations, legal facts, etc.).
Synthesis is the process of combining into a single whole parts, properties, features, relationships, identified through analysis. For example, on the basis of combining and generalizing the main features that characterize the state, state body, law, legal relationship, offense, legal responsibility, general concepts are formulated. Synthesis complements analysis and is inseparable unity with it.
In addition, science must take into account the historical traditions, socio-cultural roots of the state and law. The foregoing determines the application in the cognition of state-legal phenomena historical method.
The third group consists of private scientific methods.
1) Traditional for legal science formal-legal method. The study of the internal structure of legal norms and law in general, the analysis of sources (forms of law), the formal definition of law as its most important property, the methods for systematizing normative material, the rules of legal technique, etc. All these are concrete manifestations of the formal legal method. It is applicable in the analysis of the forms of the state, in the definition and legalization of the competence of state bodies, etc. In a word, the formal-legal method follows from the very nature of the state and law, it helps to describe, classify and systematize state-legal phenomena, to explore their external and internal form.
2) In our time, when integration processes naturally intensify, the role of the method of comparative state studies and jurisprudence increases ( comparative legal), which has as its object similar state-legal institutions of various countries. From a logical point of view, the named method is based on the consistent study and comparison a large number similar objects. For example, it is difficult to establish the advantages and disadvantages of the state and legal institutions of our country without comparing them with similar institutions in other countries. The value of this method increases when there is a need for political and legal reforms. At the same time, comparative state science and jurisprudence have nothing in common with the mindless borrowing of foreign experience and its mechanical transfer to our specific historical, national, and socio-cultural conditions.
3) One of the effective tools for studying the state and law is statistical method, based on quantitative methods of obtaining data that objectively reflect the state, dynamics and trends in the development of state-legal phenomena. Statistical phenomena operating with numbers, which often turn out to be more convincing than any words, include several stages: statistical observation, summary processing of statistical data and their analysis.
4) The method of state and legal modeling. Its essence lies in the fact that there is a certain similarity between various state and legal phenomena, and therefore, knowing the properties and features of one of them (the model), one can judge others with a sufficient degree of accuracy.
Modeling helps in finding the best schemes for organizing the state apparatus, the most rational structure of the administrative-territorial division, in the formation of a system of legislation, etc.
5) In modern conditions, it is of particular importance concrete sociological method research of state-legal problems. The essence of the method of specific sociological research is the analysis, processing and selection of the necessary reliable information about the most important aspects of legal practice, the development and functioning of state and legal institutions in order to make certain theoretical generalizations and make appropriate practical decisions. With its help, it is possible to identify the degree of effectiveness of the functioning of all branches of government, legal regulation, the state of law and order in the country. Concrete sociological research contributes to the development of key issues in the theory of state and law, for the study of which they provide a mass of new life facts, statistical and other data.
Within the framework of the concrete sociological method, such techniques as observation, questioning, interviewing, experiment, etc. are used.
6) In the study of state-legal phenomena, it is also used functional method. It is used to single out the constituent structural parts in state-legal systems in terms of their social purpose, role, functions and connection between them. This method is used in the theory of state and law in the study of the functions of the state, state bodies, law, legal awareness, legal responsibility and other social and legal phenomena.
The considered general and particular scientific methods for studying the theory of state and law are applied in a complex, in close connection with each other.
System of the theory of state and law
It is advisable to analyze the structure of the theory taking into account the specifics of cognition of the theory of state and law as a science and academic discipline.
The structuring of the theory of state and law as a science is carried out in the context of two main approaches, which, with a certain degree of conventionality, can be called subject and functional.
In accordance with subject approach - in the structure of the theory of state and law, two main sections are distinguished: "the theory of state" and "theory of law".
The theory of state and law is studied according to a certain system, which is a logically consistent arrangement of questions that reflect the objective structure and content of the subject of this science.
The study of the state and law begins with an understanding of the relationship between society and the state, the laws of origin of those features of the state that distinguish it from the organization of public power in the primitive communal system. Then the main questions of the theory of the state are considered: signs, essence of the state, the most important characteristics of legal statehood, forms, types, mechanism and functions of the state.
After understanding the general issues of the theory of the state, it is advisable to proceed to the study general theory rights. This section of the course gives an idea of what law is and what its elementary particle is - the rule of law; in what forms legal norms are expressed; what is the law and what is its place in the system of legal acts of the state; what is the role of law and regulation in modern public life. The principles of construction and functioning of the system of law and the system of legislation, forms of implementation of legal norms and features of law enforcement activities of the competent authorities of the state are also studied.
The study of the general patterns of legal relations, lawful behavior, offense and legal liability, legality and legal order completes the course of the theory of state and law.
Supporters functional approach, legal dogmatics, legal technique, legal methodology, sociology of law and philosophy of law are singled out as relatively separate elements.
As elements that in the complex form the "subject field" of the modern theory of state and law, one should consider:
conceptual and categorical apparatus of jurisprudence ( legal dogma). The theory of state and law is a kind of "ABC of jurisprudence". Within the framework of this science, the main concepts and principles that characterize the state and law (law, state, rule of law, state body, legal relationship, offense, etc.) are formulated;
basic principles and theoretical models lawmaking and implementation of law ( legal technique). The theory of state and law gives a general description of the processes of lawmaking and the implementation of law in terms of their structure and content, explores the functions of these processes, determines possible consequences, outlines promising ways of optimization;
basic means, techniques, methods and principles of knowledge in the field of legal science ( legal methodology). The theory of state and law gives a general description of the main methods of cognition of legal science, determines the principles for using these methods in the process of studying legal reality.
Sociology of law represents a new scientific direction, highlighted in sociology - a science that studies the structural elements of society in interconnection, the conditions for their existence, as well as the functioning and development of all aspects of human activity in society.
The sociology of law considers the legal system in close connection with life, social practice; considers law from the point of view of social relations that give rise to legal norms and procedures related to their legal regulation and legal protection.
The sociology of law originated at the turn of the 19th and 20th centuries, and began to develop in Russia in the 1920s. N.M. Korkunov, S.A. Muromtsev, N.N. Kareev and others, who made a significant contribution to the development of legal thought, developed a sociological approach to the concept of law. In particular, N.M. Korkunov defined law as a measure of delimitation of people's interests, and S.M. Muromtsev - as a legal relationship.
Philosophy of law involves focusing on the most general and, therefore, objective patterns of the emergence and development of the state and law, and also explores philosophical categories (freedom, necessity, society, etc.) in their legal interpretation.
In this way, during the lecture, you got an idea about the object, subject, system of science "Theory of State and Law", defined its functions and methodology, formulated the relevant concepts.
1. Study on your own the following questions: concept, main tasks and significance of the philosophy of law; concept, main tasks and significance of the sociology of law. Concept, meaning, functions of special legal theory (dogma)
2. Finalize the abstract.
3. Repeat the lecture materials and prepare for the seminar on the following issues: 1. The concept, meaning of the theory of state and law as a science and its subject. 2. Functions of the theory of state and law. 3. Methodology of the theory of state and law. 4. The system of the theory of state and law.
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